Thinking About the Unthinkable

Ensuring the well being of your children if tragedy strikes

It was one of the most challenging decisions my wife and I had to make early in our marriage. It was after the birth of our second child. The decision was who would take care of our children – who would be the children’s guardians – if the unthinkable occurred and neither of us were there or we were incapacitated.

What makes this decision so challenging? First of all, it is not something most of us want to talk about or even contemplate. Second, it forces both parents to think about and reconcile what is important in terms of values, discipline, and education in raising children because that influences who we want to charge with the task of raising our children. Third, it causes us to take a critical view of the strengths and weaknesses of our relatives, close friends, and our spouse’s close relatives. The latter, believe me, is never an enjoyable exercise as we seek a consensus.

Texas law makes this selection process a bit easier by allowing guardianship duties to be divided. One person can be appointed to manage funds left for the care of the minor children (the “guardian of the estate”) and another person can be appointed to have custody of the children (the “guardian of the person”). This can make selecting the best guardians much easier. Additionally, many parents eliminate the need to have a guardian of the estate at all by creating trusts in their wills for the benefit of their children.

In selecting guardians, be sure to talk to the individuals you select as your first choice, as well as any alternates, to ensure they are willing to take on this responsibility. But do not stop there. Write out for them your hopes and dreams for your children. Include your wishes for their religious, educational, and personal development as well as listing other important people you want in your children’s lives.

There are two ways in Texas you can make your wishes known. One, you can put those you have selected as guardians in your will or two, you can complete a form set out in Texas law.

There are some additional considerations. You can select a married couple to serve as joint guardians, but be sure to revise your form or update your will if the couple divorces or one dies. Using the form and providing a copy to the person you have selected, instead of placing your selection in your will, can be of benefit since sometimes the will is not readily available. Finally, a judge will still have to approve your choice based on what the judge believes is in the best interest of your children, but your choice will be presumed to be in the best interest.